Next on the agenda for marriage equality litigators…

Steve Sanders is associate professor at the Maurer School of Law, and an affiliated faculty member in political science and gender studies, at Indiana University Bloomington. He tweets @SteveSSanders.

Today’s decisions were not the end of federal litigation on marriage equality, they were really only the beginning. And so, in light of what the Court called our nation’s “evolving understanding of the meaning of equality,” how should the next wave of marriage litigation be constitutionally theorized and argued?

There are two major marriage-equality problems yet to be dealt with: (1) couples who are still barred from marrying in 36 “mini-DOMA” states where marriage discrimination remains embedded in statutes or constitutional amendments, and (2) couples who are already legally married, but whose marriages are denied recognition in those mini-DOMA states. I focus here on the second issue.

Ostensibly, the Court today did not deal with either of these problems. Windsor struck down DOMA’s Section 3, which barred federal recognition of extant same-sex marriages, but the Court said nothing about Section 2, which purports to authorize states to deny recognition to each other’s marriages. And Hollingsworth, while effectively vindicating District Judge Vaughn Walker’s masterful opinion striking down California’s Proposition 8, said nothing of substance about equality or liberty.

But as Tom Goldstein noted this morning on the live blog, it is essential to listen not only to the words of the Court’s decisions, but to the music as well. And both of today’s decisions, in their own ways, reflect the rapid evolution on same-sex marriage we have seen in the White House, the judiciary, the states, among members of Congress, and in public attitudes. Those who believe the “limitation of lawful marriage to heterosexual couples” is an “unjust exclusion,” Windsor teaches, are entitled to have their constitutional arguments heard seriously and with respect. Just as Lawrence v. Texas held that same-sex intimate relationships were entitled to constitutional dignity, Windsor holds that same-sex marriages implicate “an essential part of the liberty protected by” the Constitution’s guarantees of due process and equal protection.

In striking down DOMA’s Section 3, Windsor addressed the problem of “same-sex couples who are married for the purpose of state law but unmarried for the purpose of federal law.” But it did not touch what the Court more than 70 years ago (in the context of divorce) called “the most perplexing and distressing complication[] in the domestic relations of . . . citizens”: the idea that a person could be married in one state and unmarried in another. This is a complication that more than 30 states, backed up by DOMA’s Section 2, still inflict on same-sex couples. Their mini-DOMAs are understood to deny legal recognition to the marriages of same-sex couples who migrate from states where such marriages are perfectly legal; some expressly purport to “void” such marriages. Such laws transform married gays and lesbians into legal strangers, effectively divorcing them against their will by operation of law.

This is a serious problem of both constitutional law and federalism, and it deserves a central place in the landscape of marriage equality litigation going forward. It has been a sleeper issue throughout the marriage equality debate, and I predict it is about to emerge front and center.

More than 114,000 same-sex couples have legally married in the United States, according to UCLA demographer Gary Gates, a number that is growing every week. Extrapolating from census data on Americans’ state-to-state migration, we can assume that several thousand of these couples change states every year for employment, education, family, or personal reasons. Non-recognition laws threaten these couples with serious harm. If two persons who were once married in Iowa or New York are suddenly rendered legal strangers in Indiana or Michigan, their property rights are potentially altered, spouses disinherited, children put at risk, and financial, medical, and personal plans thrown into turmoil. This is an array of problems and indignities that no rational legal system should tolerate.

America’s state marriage patchwork also means that, for married gay couples now living in mini-DOMA states, Windsor simply creates new legal dilemmas. As William Baude noted perceptively last year, “DOMA’s demise will lead to chaos” because “[t]he federal government has no system for deciding what state’s law governs a marriage” – the state that performed the marriage, or the state where the couple currently lives.

On this blog and in a recent article for the Michigan Law Review, I have argued that a person who legally marries in her home state, then pulls up stakes and moves to another state, acquires a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that is conceptually and doctrinally distinguishable from any constitutional “right to marry” in the first instance. It is a neutral principle, grounded in core Due Process Clause values: protection of normative expectations about marital and family privacy (if a state can’t take away your child without due process, how can it take away your spouse?); respect for established legal and social practices (state-to-state marriage recognition is a longstanding default rule); and rejection of the idea that a state can unilaterally sever a legal family relationship without important, proven justifications.

Did the Court today provide any support for my argument? To be sure, Justice Kennedy’s Windsor opinion is solicitous toward the prerogative of states to define marriage for themselves. But his analysis is entirely in the context of verticalfederalism: federal law, the Court said, may not “injure” same-sex couples whom a state has seen fit to “protect” with the status of marriage. The key here, I think, is that many of the Court’s rationales for condemning DOMA also implicate horizontal federalism: the obligations states owe one another as coequal sovereigns.

If, as the Court says, it is intolerable to have “two contradictory marriage regimes within the same State,” then why is it more rational to have two contradictory marriage regimes in the same country – especiallywhen the practical effect is to disrupt stability in legal relationships, endanger property and parental rights, and impede same-sex couples’ right to travel and take up residence in a new state? Just like Section 3 of DOMA, these conflicting state regimes “place[] same-sex couples in an unstable position of being in a second-tier marriage.” The Court acknowledges that the “incidents, benefits, and obligations of marriage … may vary … from one State to the next.” But it does not expressly or even implicitly say it makes sense for the very status of marriage to vary from state to state.

Seeking to limit Windsor’s impact, the Chief Justice in dissent refers obliquely to “concerns for state diversity and sovereignty” in marriage law. These concerns will surely affect the shape and pace of litigation in new states where gays and lesbians may seek a federal right to marry. But they are no reason to turn a blind eye to tens of thousands of couples who risk having their extant marriages nullified simply because they cross a state line. Like the majority’s opinion, the due process liberty argument I have advanced for interstate marriage recognition is confined to “lawful marriages” that already exist.

Given that most day-to-day benefits and obligations of marriage are governed by state, not federal law, it is a bigger problem for most couples when a state denies the existence of their marriage than when Washington does so. As much or more so than federal non-recognition, the crazy quilt of same-sex marriage recognition (to quote the Windsor majority again) “demean[s]” same-sex couples, “divests” them of “the duties and responsibilities that are an essential part of married life,” “humiliates” their children, and signals that “their marriage is less worthy than the marriages of others.” Such “interference with the equal dignity of same-sex marriages” forces couples to “have their lives burdened, by reason of government decree, in visible and public ways.”

Moveover, like DOMA’s Section 3, the discrimination legitimized by Section 2 and practiced by the majority of states is of an “unusual character.” All states currently recognize the vast majority of marriages celebrated in other states, not as a constitutional requirement (the conventional wisdom is that the Full Faith and Credit Clause doesn’t apply here) but as a matter of comity and common sense. Accordingly, individual states have long recognized marriages – common-law, first-cousin, even uncle-niece – that they themselves would not have created. Mini-DOMAs simply carve out a gay/lesbian exception to this longstanding rule.

Whatever federalism-based respect we must continue giving states in deciding whether to create same-sex marriages, these states have no humane, reasonable, or even coherent interest in demanding the continued power to sunder the unions of couples who are already married. If, by creating a same-sex marriage, a state invokes its “historic and essential authority” to confer “dignity and status of immense import,” as the Court told us today, then requiring sister states to recognize that marriage is the price of living in a federal system of equal sovereigns.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.